MOBIL PRODUCING NIGERIA UNLIMITED v. CHIEF UBELEJIT EMMANUEL AYAUKO & ORS
(2018)LCN/12117(CA)
In The Court of Appeal of Nigeria
On Friday, the 2nd day of November, 2018
CA/PH/555/2016
RATIO
COURT AND PROCEDURE: AUDI ALTEREM PATEM
“RHODES-VIVOUR JSC succinctly captured the essence of this maxim in B. A. IMONIKHE V UNITY BANK Plc (2011) LPER- 1503 (SC) when he held on page 36 paragraphs B – D thus: – ‘Audi alteram partem is a maxim denoting basic fairness. It is a canon of natural justice that has its roots in the old testament. The Good Lord heard Adam before he passed sentence. It simply means hear the other side. See F.C.S.C. V LAOYE (1989) 2 NWLR {Pt. 106} P. 652; AKANDE V STATE (1988) 3 NWLR {Pt. 85} P. 681’. The learned Law Lord reiterated this cardinal point on fair hearing again in PRINCE ABUBAKAR AUDU -V- ATTORNEY GENERAL OF THE FEDERATION & ANOR (2012) LPELR 15527 (SC) pages 12 – 13 paragraphs E – A as follows: – ‘Audi alteram partem means please hear the other side. It is a maxim denoting basic fairness and also a canon of natural justice. The standard required in Court is that the judge should allow both parties to be heard and should listen to the point of view or the case of both sides before judgment. See F.C.S.C. V LAOYE (1989) 2 NWLR {Pt. 106} P. 652; AKANDE V STATE (1988) 3 NWLR {Pt. 85} P. 681; ADIGUN V ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR {Pt. 53} P. 678’.” PER BITRUS GYARAZAMA SANGA, J.C.A.
JUSTICES
ISAIAH OLUFEMI AKEJU Justice of The Court of Appeal of Nigeria
CORDELIA IFEOMA JOMBO-OFO Justice of The Court of Appeal of Nigeria
BITRUS GYARAZAMA SANGA Justice of The Court of Appeal of Nigeria
Between
MOBIL PRODUCING NIG. UNLIMITED Appellant(s)
AND
1. CHIEF UBELEJIT EMMANUEL AYAUKO
2. MR. BLACK JAMES
3. MR. UDUNG EMMANUEL
4. MR. DOMINIC SAM
5. MR. OTUGBAN FRANCIS
6. MR. TEL NNA
7. MR. IBILEFA JAMES
8. MR. UNYE IBOK
9. MR. WARRISOFINI NGOH
10. MR. MARCUS AKAWEN
11. MR. ITONG WILLIAM
12. MR. THOMPSON DIKE
13. MR. AWAJIOTOGWUNG EMMANUEL
14. MR. UGBANA ISAAC
15. MR. LAWRENCE MEFU
16. MR. AZU EMMANUEL
17. MR. PRINCEWILL WELLINGTON
18. MR. LAMBERT MARK
19. MR. LAWRENCE ROBINSON
20. MR. GWUNGEBIRIENG ETE
21. MR. DIKE BROWN
22. MR. NGBOWAJI JAMES
(For themselves, on behalf and as Representatives of all the Fishermen in Muma, Ilotombi, Oyorokoto, Okokiri, Okolondeng, Oturuba, Ama-Augustus,Otudung, Iwogono, Opuwari, Ifoko, Iwokiri, New Jerusalem, Egberi, Ama-Out, Ama-Utoon, Ajekunle, Emenefor, Ibot-Osut, Nkaleek, Otudung and Ikwoke Fishing Settlements in Andoni Local Government Area of Rivers State, Nigeria) Respondent(s)
BITRUS GYARAZAMA SANGA, J.C.A. (Delivering the Leading Judgment):
This interlocutory appeal is against the Ruling of the Federal High Court of Nigeria, Port Harcourt Judicial Division delivered on 4th July, 2016 in Suit No. FHC/CS/169/2014 U.N. Agomoh J., presiding. The Respondents as Plaintiffs instituted this suit in a representative capacity vide an endorsed Writ of Summons and Statement of Claim dated 8th August, 2014 against the Appellant as Defendant claiming for the following relief: –
WHEREFORE the Plaintiffs claim against the Defendant:
The sum of N19,639,990,000.00 (Nineteen Billion, Six Hundred and Thirty-Nine Million, Nine Hundred and Ninety Thousand Naira) only, being special and general damages as compensation for the oil spillage of 1st May, 2010 from the Defendant?s Usan and Idoho Production Platform facilities and AN ORDER that the Defendant immediately embarks on the clean-up and remediation of the plaintiff’s environment in accordance in (sic) United Nations Environmental Programme (UNEP) standards. (page 15 of the Records of Appeal)
In response, the Appellant filed its Statement of Defence in opposition to the Respondents’ Originating Processes. (pages 164- 172 of the Records of Appeal). The Appellant then filed a Motion on Notice dated 9th December, 2015 seeking for the following orders: –
1: An Order striking out/dismissing the Plaintiffs/Respondents suit.
ALTERNATIVELY:
2: An Order striking out paragraph 24(a) – (l) (purported particulars of negligence) of the Plaintiffs Statement of Claim
3: And for such further Order(s) as the Honourable Court may deem fit to make in the circumstances.
The grounds upon which the application is based are: –
a. That the Plaintiffs’ claims for special damages are the basis upon which this suit was instituted and same was not particularized in the Plaintiffs’ pleadings as required by law.
b. That the failure of the Plaintiffs to particularize their claim for special damages under a specific heading amounts to a breach of the Defendant/Applicant’s right to fair hearing.
c. That the Plaintiffs having failed to particularize the special damages in their Statement of Claims as held by the Supreme Court in Nwanji v. Coastal Serv. (Nig) Ltd (2004) 11 NWLR {Pt. 885} have no reliefs capable of being granted before the Court and thereby robs the Court of the jurisdictional vires to entertain the Suit.
d. That this Honourable Court is robbed of the legal competence or jurisdiction to entertain the matter as the case was not initiated by due process of law.
e. That there is no competent Statement of Claim in support of the Plaintiffs’ Writ of Summons.
f. That the action of the Plaintiffs is premised on Negligence; and that negligence is a cause of action and not a head of claim.
g. That the Plaintiffs’ cause of action premised on negligence, is not supported by detailed and sufficient particulars.
h. That the Plaintiffs’ in their Statement of Claim had pleaded laws, evidence and conclusions instead of particulars in support of negligence, thereby offending the rules of pleading.
i. That the action as presently constituted by the Plaintiffs; vide their writ of summons and statement of claim has robbed this Honourable Court of the jurisdiction to adjudicate on the matter. (pages 188 – 190 of the Records of Appeal).
A supporting affidavit and written address accompanied the motion paper. (pages 191 – 209 of the Records of Appeal).
The Plaintiffs filed a 10 paragraphs counter affidavit and a written address on (pages 228 – 233 of the Records of appeal).
On 4th July, 2016 the learned trial Judge delivered his Ruling (pages 348 – 355 of the Records of Appeal). While dismissing the Appellant’s motion the learned trial Judge held thus: –
“It is my finding that, apart from paragraph 24 of the plaintiffs’ statement of defence, there are other paragraphs in the said statement of claim that contains particulars of negligence and special damages, the prove of which will be determined at trial. I respectively, do not therefore agree with learned counsel to the defendant/applicant that, apart from paragraph 24 of the statement of claim, there are not enough particulars of negligence and special damage to sustain this suit. And as stated earlier, the prove of same, is a different issue altogether”.
Consequently, I find and hold that this application, on whether this suit can succeed on what is left in the event that paragraph 24 is struck out, is premature.
This application is accordingly dismissed’.
This decision irked the Defendant. Its counsel filed a Notice of Appeal containing two grounds of appeal which, shorn of their particulars, reads thus: –
GROUND 1
The lower Court erred in law and thereby breached the Appellant?s right to fair hearing when it held that the Respondents’ failure to supply the particulars of special damages does not invalidate the claim of the Respondents.
GROUND 2
The lower Court erred in law when it held that even if the paragraphs that contained law in the Statement of Claim were struck out, there were other paragraphs that support the Plaintiffs/Respondents claim which would be proved at the trial. (pages 263 – 268 of the Records of Appeal).
The record of appeal was compiled and transmitted to this Court on 11th November, 2016 but deemed as properly compiled and transmitted on 16th April, 2018. The Appellant’s brief of argument was settled by Bridget Osazuwa Esq. a counsel in the law firm of Professor Fabian Ajogwu SAN.
It was dated and filed on 6th March, 2017 but deemed as properly filed and served on 16th April, 2018. The Respondents’ brief of argument dated and filed on 4th April, 2017 was settled by Chiabu Onuobia Esq. On being served with the Respondents’ brief the Appellant filed its Reply Brief on 28th June, 2017. Both the Respondents’ Brief of Argument and the Appellant’s Reply Brief were consequentially deemed as properly filed and served on 16th April, 2018.
Learned counsel to the appellant formulated two issues for determination as follows: –
1: Whether the trial Court was wrong when it held in its Ruling of July 4, 2016, that the Respondents? failure to supply the particulars of special damages does not invalidate the claim of the Respondents. (Ground 1)
2: Whether the lower Court was wrong when it held that even if the paragraphs that contained law in the Statement of Claim were struck out, there were other paragraphs that supported the Plaintiffs/Respondents claim which would be proved at the trial. (Ground 2)
Learned counsel to the Respondents also formulated two issues for determination as follows:
1: Whether the Learned Trial Judge was not right in holding that the Respondents properly pleaded the particulars of their special damages in their Statement of Claim.
2: Whether the Learned Trial Judge was not right in holding that even if paragraph 24 of the Respondents’ Statement of Claim is struck out that there are still other paragraphs left therein to sustain their claim.
It is obvious that the two issues were formulated from the two grounds of appeal although couched differently. For purposes of determining this appeal I will adopt the issues formulated by the Appellant.
Issue 1 is:
Whether the trial Court was wrong when it held in its Ruling of July 4, 2016, that the Respondents’ failure to supply the particulars of special damages does not invalidate the claim of the Respondents, thereby breaching the Appellant’s right to fair hearing.
In his submission while arguing this issue, learned counsel to the appellant argued that the law is trite that where a party claims special damages, he must go further to particularize the items giving rise to the special damages. He cited and quoted Order 13 Rules 5 and 33(1) of the Federal High Court Civil Procedure Rules 2009 and submitted that the use of the word ‘shall’ in these Rules was defined by the Supreme Court in EMORDI V IGEKE (2011) 9 NWLR {Pt. 1251} 24 at 38 thus:-
“By the use of the word ‘shall’ it made the provision mandatory and compulsory, thereby excluding the exercise of discretion, and a chance to shift even an inch”.
Learned counsel also quoted the holding of the learned trial Judge in his Ruling on pages 354 – 355 of the Records. That the learned trial Judge held that apart from paragraph 24 of the Statement of Claim of the Respondents there were enough particulars of negligence and special damages to sustain the suit. To counter this holding by the learned trial Judge, learned counsel to the appellant cited the authority of ABI V C.B.N (2012) 3 NWLR {Pt. 1286} 42 paragraphs F – H. where this Court held thus: –
“Claims for special damages must be particularized and must be strictly proved. In the instant case, the appellant did not particularize his claim for special damages under specific heads.”
Learned counsel submitted that the learned trial Judge erred when he held that particulars of negligence and special damages were copiously pleaded in paragraphs 23, 32 and 33 of the Statement of Claim and that further particulars were also pleaded in paragraphs 26, 27 and 28. That he did not consider the plethora of authorities which held that, where a Plaintiff claims for special damages, he must expressly particularize same in his pleadings so as not to spring a surprise on the Defendant. That apart from paragraph 24, paragraphs 26, 27, 28 and 33 do not in any way particularize or proved strictly special damages. That it follows therefore that the rule pleadings that a deponent who pleaded more than he ought to have done can always disregard the surplusage and concentrate on the more limited ones (as stated by the learned trial Judge) cannot apply in the instant suit because the other paragraphs failed to meet the requirements of the law with regards to particularization of special damages. Learned counsel drew the attention of this Court to pages 153 – 160 of the Records where the Plaintiffs claimed the sum of N1,309,315,000.00 as special damages Nand claimed for among others ‘estimated average income’ and ‘injurious affection’ which learned counsel submitted are vague in nature. He also relied on the definition of ‘special damages’ by the Supreme Court in AHMED V C.B.N. (2013) 2 NWLR {Pt. 13339} at 542.
Learned counsel concluded his submission on special damages by stating that due to the nature of special damages as defined by the apex Court a Plaintiff is mandated to itemize special damages and designate them as such in the Statement of Claim. The Plaintiff is also required to explicitly particularize the nature of the special damages he is claiming in a manner clear enough to enable the defendant know the origin or nature of the special damages. Cited in support of this argument: ALHAJI AHMADU GARI V SEIRAFINA NIGERIA LTD & ANOR (2008) 2 NWLR {Pt. 1070} 1 at 12 – 20; ARABAMBI V A.B. IND.LTD (2005) 19 NWLR {Pt. 959} 1; GONZEE (NIG) LTD. V NERDC (2005) 13 NWLR {Pt. 943} 634.
On breach of Appellant’s right to fair hearing learned counsel submitted that failure of the Plaintiffs to particularize their claim for special damages not only invalidate the entire claim but also breached the Appellant?s right to fair hearing. Cited and quoted the authority ofNZUBE ANAZODO V PAZMECK INTER TRADE, NIGERIA & ANOR (2008) 6 NWLR {Pt. 1084} 529 at 547 and the holding of the Supreme Court in NWANJI V COASTAL SERVICES (NIG) LTD (2004) 11 NWLR {Pt. 885} 552 at 568.
Learned counsel reiterated that failure of the Plaintiffs to particularize their claim for special damages left the Appellant in the dark as to how the amount claimed as special damages was arrived at which is a clear breach of the Appellant’s right to fair hearing. Cited GEORGE & ORS -V- DOMINION FLOUR MILLS LTD (1963) 1 All NCR 71; Section 36 of the Constitution of the Federal Republic of Nigeria 1999 (as amended).
Learned counsel finally submitted, on issue 1, that the lower Court failed to consider the fact that the Respondents’ claim for special damages without particularizing same ‘is an unclear and unspecific relief which cannot be countenanced or granted by the Court’. That a relief is the life wire of an action and where it is not sought for by a party, it renders the action lifeless thus making it impracticable for the lower Court to assume jurisdiction on a claim whose relief is uncertain. That Courts have severally emphasised the effect of absence of a relief in Plaintiff’s claim. Cited this Court’s decision in UZOUKWU V EZEONU II (1991) 6 NWLR {Pt. 200} 708 and reiterated that relief is a life wire and bed rock of an action. He urged the Court to resolve this issue in favour of the appellant.
While arguing this issue learned counsel to the respondents submitted that the appellant failed to furnish the lower Court with material facts that would have enabled the Court to grant its application. That assuming the respondents pleaded incomplete particulars of special damages and the appellant was confused thereby, the rules of practice allow the appellant to demand from the respondents Further and Better Particulars so that the said appellant can be properly guided. That failure to furnish particulars of special damages is not a jurisdictional issue that can be raised in limine for purposes of urging the Court to strike out or dismiss a suit. In the alternative, the appellant would have remained silent during trial and raise the issue at address stage and urge the lower Court to dismiss the suit for respondents’ failure to prove their claim for special damages. Cited the authority of OJO OGBEMUDIA EHOLOR V IDEMUDIA IDAHOSA (1992) 2 NWLR {Pt. 223} 323 at 334 paragraphs E – F.
Learned counsel submitted that they have fully pleaded the particulars of their special damages and the negligence of the appellant. That in paragraphs 12, 24, 26, 32 and 33 of their Statement of Claim the respondents copiously pleaded Particulars of Negligence and of Special Damages. That since failure to so plead is not a jurisdictional issue, if the appellant is not satisfied with the pleadings it should have left the final determination of whether or not the respondents pleaded those particulars to the overriding decision of the lower Court at the end of the case. That in paragraph 32 of their Statement of Claim, the Respondents pleaded, and incorporated by reference, the Valuation Report which contains the details of the particulars of their special damages since they repeated the contents of the said Valuation Report in paragraph 33 of their Statement of Claim.
Submitted that the respondents fully pleaded the particulars of the special damages. Cited: MARINE MANAGEMENT ASSOCIATES INC. V NATIONAL MARITIME AUTHORITY (2013) 3 NWLR {Pt. 1333} 506 at 553 paragraphs F – G, where the Supreme Court held thus:-
“In this case, the Court affirmed that reference to a document in a pleading makes the document part of the pleading. It is noteworthy that the appellants stated in paragraph 18 of their amended statement of claim that they would be relying on the report of the actuarial firm of Ajibola Ogunsola & Co. before making a specific claim in paragraph 19 of their statement of claim. That way, they have fulfilled the requirement of pleading the particulars of special damage. The judgment of the court below amounted to the use of technicalities to defeat the ends of justice because the particulars of special damages were clearly incorporated in the statement of claim by reference”.
Learned counsel submitted further that the Appellant?s counsel submission on paragraph 33 of the respondents’ statement of claim is not correct. He narrated the correct reflection of the paragraph and submitted that the pleaded subheads of Special Damages are already contained in the Valuation Report from Osita Asiegbu & Co. which was properly pleaded and incorporated by reference. That since the Valuation Report was incorporated by reference even if the Respondents failed to plead paragraph 32 of their Statement of Claim based on the decision of the Supreme Court they would still have been adjudged to have pleaded their particulars of special damages.
That even though the respondents did not tabulate items of special damages under a paragraph with the caption: ‘Particulars of Special Damages’, the position of the law currently is that so long as they pleaded items of special damages in their pleadings that would suffice. Cited: ROYAL EXCHANGE ASSURANCE (NIG) PLC V MICHAEL ANUMNU (2003) 6 NWLR {Pt. 815} 52 at 111 – 112.
Learned counsel then countered the assertion by the appellant that no relief was sought by the respondents in their statement of claim. That the respondents are claiming reliefs in their case at the lower Court; both general and special damages. That the appellant did not cite a single judicial authority to support their submission that the suit should be dismissed for failure to provide particulars of special damages because there is none. That the respondents are also claiming for general damages for, among others, deaths of some members of their communities, devastated environment, polluted atmosphere, social dislocation etc. That even if their special damages fails they can be entitled to general damages. Cited DAVID TAYLOR V EDWIN OGHENEOVO (2012) 13 NWLR {Pt. 1316} 46.
Learned counsel finally submitted on this issue that in their entire argument the appellant never allude to the fact that they were misled by the ‘so-called insufficient pleading’. That trial is yet to commence, therefore how an alleged insufficient pleading metamorphosed into a case of denial of fair hearing is inexplicable. Moreso that the appellant did not state what it suffered as a result of the insufficient pleadings. That this appeal is frivolous and vexatious aimed at wasting the time of this Court. Learned counsel urged the Court to resolve this issue in favour of the Respondents.
I have noted the submission by learned counsel to the Appellant in the Reply Brief while replying to the Respondents’ submission in their brief of argument. I will refer to the said submission where necessary.
FINDINGS ON ISSUE 1:
For emphasis I will repeat issue 1 as couched by learned counsel to the Appellant. It reads thus: –
Whether the trial Court was wrong when it considered in its Ruling of July 4, 2016, that the Respondents’ failure to supply the particulars of special damages does not invalidate the claim of the Respondents, thereby breaching the Appellant’s right to fair hearing. (Ground 1)
This issue was couched by the appellant on the wrong assumption that the respondents? failure to provide particulars of special damages renders their entire claims invalid. The appellant chose to ignore the fact that the respondents claim not only for special damages but for general damages as reflected at the tail end of paragraph 33 of the statement of claim as follows: –
“Plaintiffs shall contend that they will continue to suffer the adverse effects of the said spillages for a long time to come. Accordingly, Plaintiffs shall urge that this continuing hardship, the several deaths that cannot be quantified monetarily, their devastated environment, social dislocation, polluted atmosphere, etc, be taken into consideration by this Honourable Court in assessing the general damages payable to them”. (page 15 of the records of appeal).
I took note of the fact that trial of the suit is yet to commence when the appellant filed the motion on notice dated 9th December, 2015 seeking to, inter alia, dismiss the Respondents’ entire suit or paragraph 24(a) – (l) of the Respondents’ Statement of Claim (pages 188 – 190 of the records of appeal). Thus the Appellant is attempting to do unto the Respondents what it alleged was done unto it by the lower Court, to wit, denial of fair hearing. One of the twin pillars of natural justice is encapsulated in the latin maxim AUDI ALTERAM PARTEM or please hear the other side.
RHODES-VIVOUR JSC succinctly captured the essence of this maxim in B. A. IMONIKHE V UNITY BANK Plc (2011) LPER- 1503 (SC) when he held on page 36 paragraphs B – D thus: –
“Audi alteram partem is a maxim denoting basic fairness. It is a canon of natural justice that has its roots in the old testament. The Good Lord heard Adam before he passed sentence. It simply means hear the other side. See F.C.S.C. V LAOYE (1989) 2 NWLR {Pt. 106} P. 652; AKANDE V STATE (1988) 3 NWLR {Pt. 85} P. 681”.
The learned Law Lord reiterated this cardinal point on fair hearing again in PRINCE ABUBAKAR AUDU -V- ATTORNEY GENERAL OF THE FEDERATION & ANOR (2012) LPELR 15527 (SC) pages 12 – 13 paragraphs E – A as follows: –
“Audi alteram partem means please hear the other side. It is a maxim denoting basic fairness and also a canon of natural justice. The standard required in Court is that the judge should allow both parties to be heard and should listen to the point of view or the case of both sides before judgment. See F.C.S.C. V LAOYE (1989) 2 NWLR {Pt. 106} P. 652; AKANDE V STATE (1988) 3 NWLR {Pt. 85} P. 681; ADIGUN V ATTORNEY-GENERAL OF OYO STATE (1987) 1 NWLR {Pt. 53} P. 678”.
As I stated above, hearing is yet to commence when the Appellant filed the motion to dismiss the entire suit because the Respondents failed to provide particulars of their special damages. I agree in toto with learned counsel to the Respondents that where particulars of special damages are not sufficiently provided or are ambiguous or vague the defendant can demand for Further and Better Particulars that can properly guide him. The Defendant can also choose to place the final determination of whether or not sufficient particulars are provided by the Plaintiffs in support of their claim for special damages at the door step of the learned trial Judge during the final addresses of counsel. The issue of insufficient particulars is not jurisdictional that can be raised in limine by learned counsel. There must be a trial and hearing of both sides before the Court can determine the merit of the case.
The learned trial Judge was right when in his Ruling he held thus: –
“It is my finding that, apart from paragraph 24 of the plaintiffs’ statement of defence (sic), there are other paragraphs in the said statement of claim that contains particulars of negligence and special damages, the prove of which will be determine at trial”. (page 354 of records of appeal).
However, pleading particulars of negligence and special damages in support of a claim is one thing, but proving with sufficient evidence during trial the said particulars of negligence is a different kettle of fish that can be determined only by the Judex. The Appellant in my humble view has jumped the gun, so to speak, by filing the motion on notice to dismiss the Plaintiffs’ suit or to strike out paragraph 24 of the plaintiffs’ pleading for insufficient particulars without according them a hearing. The failure of the Plaintiffs to plead sufficient particulars can be alleviated by the Appellant if it demand for Further and Better Particulars as held by this Court in OJO OGBEMUDIA EHOLOR V IDEMUDIA IDAHOSA (Supra) thus: –
“It has to be pointed out that if the particulars of special damages were not given in the respondent’s Amended Statement of Claim, it was open to the appellant to demand such particulars and not to wait until judgment had been given against him before raising the issue. The legal position is that the remedy available to a defendant presented with insufficient particulars in the plaintiff?s pleadings is to apply for the proper further and better particulars of the damage alleged.
On effect of failure to request for further particulars the Supreme Court in THE ATTORNEY-GENERAL OF BENDEL STATE & ORS V P.L.A. AIDEYAN (1989) LPELR ? 3158 (SC) held on page 40 paragraphs E ? F pr NNAEMEKA-AGU JSC as follows: –
“If a party pleading omits or neglects to give any or such further or better particulars, which ought to have been given, the other party has the right and duty to apply for such particulars as he deems necessary. If he fails to apply and takes no objection to such particulars as are given in evidence, he cannot later complain on appeal”.
It is my holding on this issue that the learned trial Judge was right in his Ruling delivered on 4th July, 2016 that failure of respondents to supply particulars of special damages in paragraph 24 of their Statement of Claim does not invalidate the Respondents? claim since there are other paragraphs in the said Statement of Claim that contains particulars of negligence and special damages, the prove of which will be determined during trial. I resolve this issue in favour of the Respondents.
Issue 2 canvassed from ground 2 of the grounds of appeal by the Appellant is: –
Whether the lower Court was wrong when it held that even if the paragraphs that contain law in the Statement of Claim were struck out, there were (sic) other paragraphs that support the Plaintiffs’/Respondents claim which would be proved at the trial.
This issue is answered by me while considering issue 1 above when I quoted, with approval, the holding by the learned trial Judge on page 354 of the record of appeal which gave rise to this issue. The obvious answer to this issue is therefore in the affirmative that the learned trial Judge was not wrong when he held that even if the paragraphs that contains law in the statement of claim are to be struck out there are other paragraphs that can support the plaintiff?s claim which can be proved during trial. I also resolved this issue in favour of the Respondents.
In conclusion it is my finding that this interlocutory appeal lacks merit and it is hereby dismissed. However having considered the nature of the claim by the Respondents time is of the essence. It is hereby ordered that the lower Court should accord this suit accelerated hearing in the interest of justice.
There shall be no order as to cost.
ISAIAH OLUFEMI AKEJU, J.C.A.: I read the Judgment of my learned brother, BITRUS GYARAZAMA SANGA .JCA before it was delivered. I agree that the appeal lacks merit and I dismiss it accordingly. I abide by the consequential order.
CORDELIA IFEOMA JOMBO-OFO, J.C.A.: I had the opportunity to read in draft the judgment delivered by my learned brother Bitrus Gyarazama Sanga, JCA.
I agree with the reasoning and conclusion of my respected learned brother. The appeal lacks merit and it is accordingly dismissed.
I make no order as to costs.
Appearances:
Moruf Sowimmi Patricia Ude, Esq.For Appellant(s)
C. P. Onuobia, Esq.For Respondent(s)
